There are two types of Deputyship Order:
- Property and financial affairs
- Personal welfare
April Legal can help you obtain both types of order. Most of the people we help require a Property and Financial Affairs Deputyship Order to ensure the smooth running of the person’s financial affairs. Your lawyer will complete all the paperwork on your behalf and liaise with all relevant parties. This can be a stressful time for those involved and we do all we can to make the process as swift and painless as possible.
Someone close to you may have lost mental capacity because:
- They have dementia
- They have suffered a serious brain injury or illness
- They have severe learning disabilities
Losing mental capacity means that the person cannot understand and make decisions for themselves. This means that they are unable to:
- Understand the information relevant to the decision
- Retain that information
- Use or weigh that information as part of the process of making the decision
- Communicate their decision (whether by talking, using sign language or any other means).
Some people have the mental capacity to make some decisions but not others. For example, a person may be able to choose the clothes they want to wear or what they want to eat, but may not be able to manage their financial affairs.
If you are appointed as a Deputy, you will be obliged to act in the person’s best interests, consider anything the person might have done in the past, and try to help them understand decisions as far as possible.
The role of Court of Protection Deputy
A deputy is authorised by the Court of Protection to make decisions for someone who has lost mental capacity. Anyone over the age of 18 can apply to be a Deputy for someone who needs their help. Usually, a Deputy will be a close relative or friend of the person they want to help. The Court will decide who should be a Deputy for the person concerned and if you are appointed, they will advise you on how you can act and what you can’t do. If there is more than one deputy they will advise if decisions should be made jointly (all Deputies must agree) or jointly and severally (Deputies can act independently of each other).
People who cannot be a Court of Protection Deputy
If you are applying to be a Property and Financial Affairs Deputy and you are bankrupt or subject to a debt relief order, you must declare this on the application form – which will usually lead to the application being rejected.
You can still act as a Personal Welfare Deputy if you are bankrupt or subject to a Debt Relief Order.
Court of Protection Deputy: Fees
There are fees payable to the Court of Protection for applying to be a Deputy, as follows:
- £400 application fee for each type of Deputyship sought (i.e. £400 for a Property and financial affairs deputyship application, and £400 for a Personal welfare deputyship application)
- £500 if the Court decides that a hearing is necessary. If the Court agrees that you should be a Deputy, they will also charge:
- £100 new deputy fee for each deputy, unless you are already acting as a deputy for someone else.
- £325 annual supervision fee, this is always payable in the first year but may be reduced to £35 if you are a Property and financial affairs deputy and the person’s estate is worth less than £21,000).
NB: You can claim back the application fees from the person’s funds that you are helping if you are a Property and financial affairs deputy.
For Property and Financial Affairs Deputyship orders the Court will also require that you provide a bond. This is a type of insurance policy that guarantees the funds of the person you are acting for, should they be mismanaged. The Court will tell you how much the bond should be for.
Fee exemptions and remissions
Discounts on the application fees are available to those on a low income. The income to be assessed depends on the type of Deputyship Order you are applying for, as follows:
- Property and financial affairs – eligibility for discount is assessed on the finances of the person you will be helping. A discount may be available if they earn less than £12,000 per annum and/or are in receipt of certain benefits.
- Personal welfare – eligibility for discount is assessed on your income. A discount may be available if you earn less than £12,000 per annum and/or are in receipt of certain benefits.
In addition to the Court fees, there are legal fees for the work involved in preparing your application to be a Court of Protection Deputy. We can advise you on costs once we have had a brief chat with you about what you would like to achieve.
Q: Can the person make a Lasting Power of Attorney instead?
Once someone has lost mental capacity, they cannot make a Lasting Power of Attorney. A Deputyship Order is the only option at this stage.
If the person concerned has recently had a diagnosis of dementia but this is in the early stages, they may still be able to make a Lasting Power of Attorney – provided that they still have mental capacity. They only need to be able to understand their decision to make a Lasting Power of Attorney – it does not matter if there are some other decisions they can no longer understand (for example, decisions relating to complex finances or investments). If the person concerned already has a valid Lasting Power of Attorney or an Enduring Power of Attorney, a Deputyship Order won’t be necessary for the decisions covered by those documents. For example, if they have a Finance and Property Lasting Power of Attorney, you will not need to get a Financial Affairs Deputyship Order.
However, if they have only one type of Lasting Power of Attorney (for example, covering financial decisions but not covering health and welfare decisions), you may need to get a Deputyship Order covering the other type of decisions. Speak to us if you are in any way not sure about this.
Q: What if the person has ‘good days and bad days’?
The fact that someone has bad days does not automatically bar them from making a Lasting Power of Attorney. This may be the case in the earlier stages of dementia. Section 3 of the Mental Capacity Act says that if you need to present certain information in a particular way so that the person understands it (and that might include presenting it on a particular ‘good’ day) this is acceptable. Further, Section 3(3) of the Act shows that the fact that someone might sometimes be forgetful is not a bar to them making an Lasting Power of Attorney.
Read more: Do I need a Deputyship Order for my mother?
From the blog:
We look at whether a deputyship order is necessary where a person has ‘good days and bad days’, or whether a Lasting Power of Attorney can still be made.
21st to 27th of May is Dementia Action Week – an event organised by the Alzheimer’s Society in support of dementia sufferers, their families and carers. We look at the main messages behind the campaign and what you can do to show your support.
Is it better to make a Lasting Power of Attorney now; or leave those close to you to apply for a Deputyship Order in the future, should one be needed? We look at the advantages of using an LPA over leaving things to chance.